What has made Baobab Land case too complicated for Zambian courts?
By Mwebe Mbewa
Apart from taking three decades, and counting, what is it about the case involving Baobab Land in Lusaka that has made it too complicated for the Zambian judiciary to resolve after all these years?
This is the question that arises now that the case in which Lusaka farmer Jonathan Van Blerk is challenging the compulsory acquisition of part of Farm 4300 Lusaka by the State commences in the Court of Appeal, for the second time, after as many appearances in the Supreme Court.
In this case, Mr Van Blerk challenged the action because the Attorney General submitted in Court that the compulsory acquisition of part of Farm 4300 was done in the public interest, for the stated public purpose that Lusaka City Council would build a housing estate for civil servants and other residents, but later the State allocated the same land to private companies for their own profit.
There are factors which have made this case seem more complicated than it really is when looked at in the light of its most essential elements, starting with its history.
The actual compulsory acquisition of this land by the President took place in 1987. The public interest or public use of the acquired land was first articulated when owner of Farm 4300, Lusaka, Jonathan Van Blerk, challenged the action. The Attorney General told, first, the High Court, and later the Supreme Court, that the land was acquired for the Lusaka City Council to build a housing estate complex for civil servants.
However, as he was pursuing the case, Mr Van Blerk discovered that the same land was allocated to private entities, starting with Legacy Holdings which wanted to build a hotel and luxury golf course, a development without any resemblance to the public use submitted in court as justification for the compulsory acquisition.
This is why Mr Van Blerk concluded that the court submission by the Attorney General that part of his farm was compulsorily acquired to execute the well-articulated public interest project of housing estate complex was a misrepresentation.
After Legacy Holdings left without breaking ground, the land was divided between two other private entities Kwikbuild Construction(Z), Limited, which claimed it would use the land for purely agricultural purposes, and Bantu Capital Corporation intending to construct a commercial buildings and residential houses.
Again, uses to which these two private entities said they would apply the land bore no resemblance to the public use justification that the Attrorney General submitted to justify its compulsorily acquisition.
At this point, it can be said that the initial complication was introduced into this saga by the office of the Attorney General. When justifying the compulsory acquisition in the High Court, the Attorney General submitted that the land was for the public purpose of the LCC building a housing estate for civil servants and other residents. But instead, the State gave the same land to private companies to deal with it as they wished as long as they made profit.
But both these private entities violated their lease agreements and engaged in sub-dividing and selling of plots, which the agreements prohibited.
This seed of complication was nourished by two factors in the handling of the case by the courts themselves in two ways. Firstly, in spite of Van Blerk and his lawyers’ best efforts, the courts simply never addressed the question of the effect of this variation, from public purpose to private commercial purpose, on the substance of the public purpose justification the Attorney General submitted during the initial court challenge.
Secondly, the Attorney General and other respondents, now perceiving that the issue of public use justification, but private profit execution, had become problematic, switched their defence to the one major legal technicality of the process – that the High Court and the Supreme Court had already found that the compulsory acquisition was justified.
By this time, the two sides had the following positions: Mr Van Blerk believed the justification submitted by the Attorney General to the High Court, that part of his land was compulsorily acquired for the public purpose of LCC building housing estate, amounted to fraudulent misrepresentation because the Attorney General (State) later gave the same land to private companies for their own profit.
On the other hand, the respondents sought cover by repeatedly submitting that Mr Van Blerk’s challenge of the compulsory acquisition of part of this land had already been lost after the High Court ruled that it was justified.
But since this justification was based on the very submission that the land would be used by the LCC for the stated public purpose, now that it had been allocated to private companies to be applied used for their own profit, did the earlier public use justification still stand?
It is a source of consternation that successive lower courts which handled the various aspects of this case skirted addressing this central issue, but instead trailed red-herring legal technicalities, and preliminary issues, used to further complicate and stretch the case over two decades, which appeared to have been meant to tire Van Blerk into giving up on his challenge.
Of all the legal technicalities employed to frustrate Mr Van Blerk’s challenge, none was more effective than res judicata (loosely translated in layman’s language as ‘already adjudicated’), which almost all the respondents raised in their submissions and arguments, right up to the Court of Appeal.
It is clear the issue of Van Blerk’s challenge being res judicata was simply used to impede quick resolution. When finally Mr Van Blerk’s Appeal came before the Supreme Court, this was essentially its finding.
“”We should not lose sight of the fact that this matter started 33 years ago and that we do not expect litigants to have the patience of Job while waiting for their cases to move at a glacial pace in our courts. In any event, public policy demands that the judicial process must be sensitive to, among other things, speed and reduced litigation costs. It is regrettable that this litigation has taken so long. While the respondents cannot be blamed for defending their clients’ rights by adopting a Stalingrad defence, they should accept some reponsibility for contributing ti the uncertainty and delay in connection with this saga. They could have, for instance, realised that numerous authorities show that a judgment obtained by fraud or fraudulent misrepresentation can be set aside and that res judicata in such instances is not a defence and that the action was not time barred based on documentary evidence. Arguments on these fairly straight forward legal issues expended unnecessary time, costs and energy”, the Supreme Court said in its Judgment by Justices Albert Wood, Mumba Malila and Jane Kabuka delivered on 17th May 2021.
But perhaps the most villainous complication of this case was imported into it by the introduction of private companies to purchase portions of the compulsorily acquired land and some of them proceeded to sub-divide and sublet it, which actions were prohibited under the lease agreements they signed.
These companies are Bantu Capital Corporation Limited, and Kwikbuild Construction Limited. The National Pension Schemes Authority also later purchased part of the compulsorily acquired land on Farm 4300.
Intriguingly, Bantu Capital Corporation and NAPSA both purchased their portions when there was on-going litigation concerning the land, which the High Court and the Court of Appeal did not seem to have picked up despite Van Blerk’s lawyers raising it.
But the Supreme Court showed up these two entities and stated:
“State Counsel (Sakwiba) Sikota has, apart from stating the law on the subject, not attempted to show us how he was going to develop the argument that the 5th Respondent (Bantu Capital Corporation which he represented) was oblivious to the controversy and litigation in connection with the land which was very much in the public domain.”
Of NAPSA, the Supreme Court remarked:
“The 6th Respondent (NAPSA) cannot avail itself of this argument as it purchased the land, according to State Counsel (Elijah) Banda, in 2019 long after the writ of summons had been issued….”
This means that both Bantu Capital Corporation and NAPSA bought part of the land compulsorily acquired by the State for the LCC to construct a housing estate complex, while it was subject of court litigation.
Since then, these two entities have surprisingly continued to transact in the same land, creating sub divisions and carrying out constructions even while the case is still in court. In the case of NAPSA, disregard for the law in transactions over Baobab Land appears to have become a habit.
For example, in 2021 it had to take the Supreme Court to order the NAPSA to cease construction activities on Lusaka’s Baobab Land until the main case involving this land are finally determined by the courts.
In an Order signed on 21 July, 2021, just two months after Mr Van Blerk won his Appeal in the Supreme Court, Supreme Court Judge Albert Wood directed that NAPSA be restrained from carrying out any perimeter wall construction works or any building or fixture on this disputed land until final determination of the matter or until further order of the Court.
The Attorney General, who is 1st Respondent in the case, is both author of the original complication, having first compulsorily acquired the land for the LCC to build houses, and then being the agent for allocation of the same land to private companies so that they could profit from it. Later, in trying to defend its action of giving compulsorily acquired land to private companies, the Attorney General concocted the fiction that the private companies were being used as “conduits to bring about the original public purpose”. Clearly, in the original public purpose, the LCC, a public authority, would get profit from developments on the land, while private companies can only make profit for their individual or group owners.
In fact, at one point after being confronted with the problem it had created with the variation of the use of compulsorily acquired land, the Attorney General conceded a mistake had been made.
During this long litigation process, the Attorney General wrote a letter dated 17th January, 2012, to all parties involved in the now complicated saga to attempt an ex curia settlement of the matter.
“At that meeting, the Attorney General acknowledged the error of issuing the acquired portion to private entities, particularly 3rd (Legacy Holdings), 4th (Kwickbuild Construction (Z) Limited and 5th (Bantu Capital Corporation) respondents who equally defrauded the government by breaching their leases. It was agreed that the 1st Appellant (Mr Van Blerk) discontinue the matter to pave way for ex curia settlement in the light of the irregularities. This meeting was not attended by the 3rd, 4th and 5th respondents,” the Court of Appeal noted in its judgment of August 2019, whose summary of this was case was later praised by the Supreme Court in its Judgment of 17th May, 2021.
According to evidence presented, the ex curia settlement failed because it was frustrated by the 4th and 5th respondents, who refused to hand over their certificates of title for cancellation, claiming they were not party to the ex curia settlement that took place in the Attorney General’s office.
Attorney General Likando Kalaluka had even written on the matter:
“I make reference to the meeting held in my office on the above subject matter on 2nd March, 2017 at which you were represented by Mrs Sarah Chanda, Principal Legal Officer.”
“As agreed in the aforesaid meeting, kindly be advised that the Plaintiff has since discontinued the court matter herein. You may therefore proceed under section 11 of the Lands and Deeds Registry Act, to initiate the process of cancellation of the certificates of title issued to Bantu Capital Corporation Limited and Kwikbuild Construction Limited for failure to adhere to the conditions of the lease agreements.”
Meaning that after realising the mistake of allocating compulsorily acquired land to private companies, the Attorney General attempted to broker an ex curia settlement and also to cancel lease agreements because the two companies violated their terms. In both cases the Attorney General failed. Had the matter become too complicated for this office or the two entities were too powerful for the State?
Fortunately, when the Supreme Court allowed Mr Van Blerk’s appeal in the 17th May, 2021 Judgment, it cut through all the peripheral complications of this case to leave only main issue of determining fraud or fraudulent misrepresentation in the manner the Attorney General obtained the favourable judgment against Mr Van Blerk’s initial challenge in the High Court by submitting that part of Farm 4300 was compulsorily acquired for public purpose, but then went on to give the same land to private companies.
This determination was left to High Court Judge Sharon Newa. Judge Newa on 22 August, 2023, ruled that Mr Van Blerk had not proved that the judgments that went against him in the challenge against compulsory acquisition of part of his farm, in the High Court and the Supreme Court, were obtained by fraud, and dismissed his action.
A surprising judgment in the eyes of Mr Van Blerk’s side, whose opponents in this case are the private companies (Bantu Capital and Kwikbuild Construction), and NAPSA, the entities which were allocated or have bought the land compulsorily acquired for public use. The question is are these private companies therefore not the very evidence that the submission that part of Farm 4300 was compulsorily acquired for public use a case of fraudulent misrepresentation?
Judge Newa’s ruling also seems to have ignored totally the 17th May 2021 Supreme Court Judgment which said:
“We must at this point state that if property is compulsorily acquired for a public purpose and it later turns out that it was not after all for a public purpose, that compulsory acquisition can be set aside and the property restored to the original owner.”
The implication of this is that fraud or fraudulent misrepresentation can be situated at a point later than the initial instance of the compulsory acquisition itself. Therefore, proving fraud cannot be restricted to the presentations at the moment of compulsory acquisition. It can emerge later when the justification for the action turns out to be untrue. In this case justification was public use by Lusaka City Council, but the land was handed over to private companies for profit.
Hopefully, the Court of Appeal now hearing Mr Van Blerk’s appeal against Judge Newa’s ruling, will bring all the pseudo complications, legal or otherwise, to an end and determine what has always been the central issue:
Does it amount to fraud or fraudulent misrepresentation for the Attorney General to have submitted in the High Court that part of Farm 4300 was compulsorily acquired for the public purpose of LCC building housing estate complex, but then proceeding to give the same land to private companies for their own profit?
What has made Baobab Land case too complicated for Zambian courts?
By Mwebe Mbewa
Apart from taking three decades, and counting, what is it about the case involving Baobab Land in Lusaka that has made it too complicated for the Zambian judiciary to resolve after all these years?
This is the question that arises now that the case in which Lusaka farmer Jonathan Van Blerk is challenging the compulsory acquisition of part of Farm 4300 Lusaka by the State commences in the Court of Appeal, for the second time, after as many appearances in the Supreme Court.
In this case, Mr Van Blerk challenged the action because the Attorney General submitted in Court that the compulsory acquisition of part of Farm 4300 was done in the public interest, for the stated public purpose that Lusaka City Council would build a housing estate for civil servants and other residents, but later the State allocated the same land to private companies for their own profit.
There are factors which have made this case seem more complicated than it really is when looked at in the light of its most essential elements, starting with its history.
The actual compulsory acquisition of this land by the President took place in 1987. The public interest or public use of the acquired land was first articulated when owner of Farm 4300, Lusaka, Jonathan Van Blerk, challenged the action. The Attorney General told, first, the High Court, and later the Supreme Court, that the land was acquired for the Lusaka City Council to build a housing estate complex for civil servants.
However, as he was pursuing the case, Mr Van Blerk discovered that the same land was allocated to private entities, starting with Legacy Holdings which wanted to build a hotel and luxury golf course, a development without any resemblance to the public use submitted in court as justification for the compulsory acquisition.
This is why Mr Van Blerk concluded that the court submission by the Attorney General that part of his farm was compulsorily acquired to execute the well-articulated public interest project of housing estate complex was a misrepresentation.
After Legacy Holdings left without breaking ground, the land was divided between two other private entities Kwikbuild Construction(Z), Limited, which claimed it would use the land for purely agricultural purposes, and Bantu Capital Corporation intending to construct a commercial buildings and residential houses.
Again, uses to which these two private entities said they would apply the land bore no resemblance to the public use justification that the Attrorney General submitted to justify its compulsorily acquisition.
At this point, it can be said that the initial complication was introduced into this saga by the office of the Attorney General. When justifying the compulsory acquisition in the High Court, the Attorney General submitted that the land was for the public purpose of the LCC building a housing estate for civil servants and other residents. But instead, the State gave the same land to private companies to deal with it as they wished as long as they made profit.
But both these private entities violated their lease agreements and engaged in sub-dividing and selling of plots, which the agreements prohibited.
This seed of complication was nourished by two factors in the handling of the case by the courts themselves in two ways. Firstly, in spite of Van Blerk and his lawyers’ best efforts, the courts simply never addressed the question of the effect of this variation, from public purpose to private commercial purpose, on the substance of the public purpose justification the Attorney General submitted during the initial court challenge.
Secondly, the Attorney General and other respondents, now perceiving that the issue of public use justification, but private profit execution, had become problematic, switched their defence to the one major legal technicality of the process – that the High Court and the Supreme Court had already found that the compulsory acquisition was justified.
By this time, the two sides had the following positions: Mr Van Blerk believed the justification submitted by the Attorney General to the High Court, that part of his land was compulsorily acquired for the public purpose of LCC building housing estate, amounted to fraudulent misrepresentation because the Attorney General (State) later gave the same land to private companies for their own profit.
On the other hand, the respondents sought cover by repeatedly submitting that Mr Van Blerk’s challenge of the compulsory acquisition of part of this land had already been lost after the High Court ruled that it was justified.
But since this justification was based on the very submission that the land would be used by the LCC for the stated public purpose, now that it had been allocated to private companies to be applied used for their own profit, did the earlier public use justification still stand?
It is a source of consternation that successive lower courts which handled the various aspects of this case skirted addressing this central issue, but instead trailed red-herring legal technicalities, and preliminary issues, used to further complicate and stretch the case over two decades, which appeared to have been meant to tire Van Blerk into giving up on his challenge.
Of all the legal technicalities employed to frustrate Mr Van Blerk’s challenge, none was more effective than res judicata (loosely translated in layman’s language as ‘already adjudicated’), which almost all the respondents raised in their submissions and arguments, right up to the Court of Appeal.
It is clear the issue of Van Blerk’s challenge being res judicata was simply used to impede quick resolution. When finally Mr Van Blerk’s Appeal came before the Supreme Court, this was essentially its finding.
“”We should not lose sight of the fact that this matter started 33 years ago and that we do not expect litigants to have the patience of Job while waiting for their cases to move at a glacial pace in our courts. In any event, public policy demands that the judicial process must be sensitive to, among other things, speed and reduced litigation costs. It is regrettable that this litigation has taken so long. While the respondents cannot be blamed for defending their clients’ rights by adopting a Stalingrad defence, they should accept some reponsibility for contributing ti the uncertainty and delay in connection with this saga. They could have, for instance, realised that numerous authorities show that a judgment obtained by fraud or fraudulent misrepresentation can be set aside and that res judicata in such instances is not a defence and that the action was not time barred based on documentary evidence. Arguments on these fairly straight forward legal issues expended unnecessary time, costs and energy”, the Supreme Court said in its Judgment by Justices Albert Wood, Mumba Malila and Jane Kabuka delivered on 17th May 2021.
But perhaps the most villainous complication of this case was imported into it by the introduction of private companies to purchase portions of the compulsorily acquired land and some of them proceeded to sub-divide and sublet it, which actions were prohibited under the lease agreements they signed.
These companies are Bantu Capital Corporation Limited, and Kwikbuild Construction Limited. The National Pension Schemes Authority also later purchased part of the compulsorily acquired land on Farm 4300.
Intriguingly, Bantu Capital Corporation and NAPSA both purchased their portions when there was on-going litigation concerning the land, which the High Court and the Court of Appeal did not seem to have picked up despite Van Blerk’s lawyers raising it.
But the Supreme Court showed up these two entities and stated:
“State Counsel (Sakwiba) Sikota has, apart from stating the law on the subject, not attempted to show us how he was going to develop the argument that the 5th Respondent (Bantu Capital Corporation which he represented) was oblivious to the controversy and litigation in connection with the land which was very much in the public domain.”
Of NAPSA, the Supreme Court remarked:
“The 6th Respondent (NAPSA) cannot avail itself of this argument as it purchased the land, according to State Counsel (Elijah) Banda, in 2019 long after the writ of summons had been issued….”
This means that both Bantu Capital Corporation and NAPSA bought part of the land compulsorily acquired by the State for the LCC to construct a housing estate complex, while it was subject of court litigation.
Since then, these two entities have surprisingly continued to transact in the same land, creating sub divisions and carrying out constructions even while the case is still in court. In the case of NAPSA, disregard for the law in transactions over Baobab Land appears to have become a habit.
For example, in 2021 it had to take the Supreme Court to order the NAPSA to cease construction activities on Lusaka’s Baobab Land until the main case involving this land are finally determined by the courts.
In an Order signed on 21 July, 2021, just two months after Mr Van Blerk won his Appeal in the Supreme Court, Supreme Court Judge Albert Wood directed that NAPSA be restrained from carrying out any perimeter wall construction works or any building or fixture on this disputed land until final determination of the matter or until further order of the Court.
The Attorney General, who is 1st Respondent in the case, is both author of the original complication, having first compulsorily acquired the land for the LCC to build houses, and then being the agent for allocation of the same land to private companies so that they could profit from it. Later, in trying to defend its action of giving compulsorily acquired land to private companies, the Attorney General concocted the fiction that the private companies were being used as “conduits to bring about the original public purpose”. Clearly, in the original public purpose, the LCC, a public authority, would get profit from developments on the land, while private companies can only make profit for their individual or group owners.
In fact, at one point after being confronted with the problem it had created with the variation of the use of compulsorily acquired land, the Attorney General conceded a mistake had been made.
During this long litigation process, the Attorney General wrote a letter dated 17th January, 2012, to all parties involved in the now complicated saga to attempt an ex curia settlement of the matter.
“At that meeting, the Attorney General acknowledged the error of issuing the acquired portion to private entities, particularly 3rd (Legacy Holdings), 4th (Kwickbuild Construction (Z) Limited and 5th (Bantu Capital Corporation) respondents who equally defrauded the government by breaching their leases. It was agreed that the 1st Appellant (Mr Van Blerk) discontinue the matter to pave way for ex curia settlement in the light of the irregularities. This meeting was not attended by the 3rd, 4th and 5th respondents,” the Court of Appeal noted in its judgment of August 2019, whose summary of this was case was later praised by the Supreme Court in its Judgment of 17th May, 2021.
According to evidence presented, the ex curia settlement failed because it was frustrated by the 4th and 5th respondents, who refused to hand over their certificates of title for cancellation, claiming they were not party to the ex curia settlement that took place in the Attorney General’s office.
Attorney General Likando Kalaluka had even written on the matter:
“I make reference to the meeting held in my office on the above subject matter on 2nd March, 2017 at which you were represented by Mrs Sarah Chanda, Principal Legal Officer.”
“As agreed in the aforesaid meeting, kindly be advised that the Plaintiff has since discontinued the court matter herein. You may therefore proceed under section 11 of the Lands and Deeds Registry Act, to initiate the process of cancellation of the certificates of title issued to Bantu Capital Corporation Limited and Kwikbuild Construction Limited for failure to adhere to the conditions of the lease agreements.”
Meaning that after realising the mistake of allocating compulsorily acquired land to private companies, the Attorney General attempted to broker an ex curia settlement and also to cancel lease agreements because the two companies violated their terms. In both cases the Attorney General failed. Had the matter become too complicated for this office or the two entities were too powerful for the State?
Fortunately, when the Supreme Court allowed Mr Van Blerk’s appeal in the 17th May, 2021 Judgment, it cut through all the peripheral complications of this case to leave only main issue of determining fraud or fraudulent misrepresentation in the manner the Attorney General obtained the favourable judgment against Mr Van Blerk’s initial challenge in the High Court by submitting that part of Farm 4300 was compulsorily acquired for public purpose, but then went on to give the same land to private companies.
This determination was left to High Court Judge Sharon Newa. Judge Newa on 22 August, 2023, ruled that Mr Van Blerk had not proved that the judgments that went against him in the challenge against compulsory acquisition of part of his farm, in the High Court and the Supreme Court, were obtained by fraud, and dismissed his action.
A surprising judgment in the eyes of Mr Van Blerk’s side, whose opponents in this case are the private companies (Bantu Capital and Kwikbuild Construction), and NAPSA, the entities which were allocated or have bought the land compulsorily acquired for public use. The question is are these private companies therefore not the very evidence that the submission that part of Farm 4300 was compulsorily acquired for public use a case of fraudulent misrepresentation?
Judge Newa’s ruling also seems to have ignored totally the 17th May 2021 Supreme Court Judgment which said:
“We must at this point state that if property is compulsorily acquired for a public purpose and it later turns out that it was not after all for a public purpose, that compulsory acquisition can be set aside and the property restored to the original owner.”
The implication of this is that fraud or fraudulent misrepresentation can be situated at a point later than the initial instance of the compulsory acquisition itself. Therefore, proving fraud cannot be restricted to the presentations at the moment of compulsory acquisition. It can emerge later when the justification for the action turns out to be untrue. In this case justification was public use by Lusaka City Council, but the land was handed over to private companies for profit.
Hopefully, the Court of Appeal now hearing Mr Van Blerk’s appeal against Judge Newa’s ruling, will bring all the pseudo complications, legal or otherwise, to an end and determine what has always been the central issue:
Does it amount to fraud or fraudulent misrepresentation for the Attorney General to have submitted in the High Court that part of Farm 4300 was compulsorily acquired for the public purpose of LCC building housing estate complex, but then proceeding to give the same land to private companies for their own profit?
By Mwebe Mbewa
Apart from taking three decades, and counting, what is it about the case involving Baobab Land in Lusaka that has made it too complicated for the Zambian judiciary to resolve after all these years?
This is the question that arises now that the case in which Lusaka farmer Jonathan Van Blerk is challenging the compulsory acquisition of part of Farm 4300 Lusaka by the State commences in the Court of Appeal, for the second time, after as many appearances in the Supreme Court.
In this case, Mr Van Blerk challenged the action because the Attorney General submitted in Court that the compulsory acquisition of part of Farm 4300 was done in the public interest, for the stated public purpose that Lusaka City Council would build a housing estate for civil servants and other residents, but later the State allocated the same land to private companies for their own profit.
There are factors which have made this case seem more complicated than it really is when looked at in the light of its most essential elements, starting with its history.
The actual compulsory acquisition of this land by the President took place in 1987. The public interest or public use of the acquired land was first articulated when owner of Farm 4300, Lusaka, Jonathan Van Blerk, challenged the action. The Attorney General told, first, the High Court, and later the Supreme Court, that the land was acquired for the Lusaka City Council to build a housing estate complex for civil servants.
However, as he was pursuing the case, Mr Van Blerk discovered that the same land was allocated to private entities, starting with Legacy Holdings which wanted to build a hotel and luxury golf course, a development without any resemblance to the public use submitted in court as justification for the compulsory acquisition.
This is why Mr Van Blerk concluded that the court submission by the Attorney General that part of his farm was compulsorily acquired to execute the well-articulated public interest project of housing estate complex was a misrepresentation.
After Legacy Holdings left without breaking ground, the land was divided between two other private entities Kwikbuild Construction(Z), Limited, which claimed it would use the land for purely agricultural purposes, and Bantu Capital Corporation intending to construct a commercial buildings and residential houses.
Again, uses to which these two private entities said they would apply the land bore no resemblance to the public use justification that the Attrorney General submitted to justify its compulsorily acquisition.
At this point, it can be said that the initial complication was introduced into this saga by the office of the Attorney General. When justifying the compulsory acquisition in the High Court, the Attorney General submitted that the land was for the public purpose of the LCC building a housing estate for civil servants and other residents. But instead, the State gave the same land to private companies to deal with it as they wished as long as they made profit.
But both these private entities violated their lease agreements and engaged in sub-dividing and selling of plots, which the agreements prohibited.
This seed of complication was nourished by two factors in the handling of the case by the courts themselves in two ways. Firstly, in spite of Van Blerk and his lawyers’ best efforts, the courts simply never addressed the question of the effect of this variation, from public purpose to private commercial purpose, on the substance of the public purpose justification the Attorney General submitted during the initial court challenge.
Secondly, the Attorney General and other respondents, now perceiving that the issue of public use justification, but private profit execution, had become problematic, switched their defence to the one major legal technicality of the process – that the High Court and the Supreme Court had already found that the compulsory acquisition was justified.
By this time, the two sides had the following positions: Mr Van Blerk believed the justification submitted by the Attorney General to the High Court, that part of his land was compulsorily acquired for the public purpose of LCC building housing estate, amounted to fraudulent misrepresentation because the Attorney General (State) later gave the same land to private companies for their own profit.
On the other hand, the respondents sought cover by repeatedly submitting that Mr Van Blerk’s challenge of the compulsory acquisition of part of this land had already been lost after the High Court ruled that it was justified.
But since this justification was based on the very submission that the land would be used by the LCC for the stated public purpose, now that it had been allocated to private companies to be applied used for their own profit, did the earlier public use justification still stand?
It is a source of consternation that successive lower courts which handled the various aspects of this case skirted addressing this central issue, but instead trailed red-herring legal technicalities, and preliminary issues, used to further complicate and stretch the case over two decades, which appeared to have been meant to tire Van Blerk into giving up on his challenge.
Of all the legal technicalities employed to frustrate Mr Van Blerk’s challenge, none was more effective than res judicata (loosely translated in layman’s language as ‘already adjudicated’), which almost all the respondents raised in their submissions and arguments, right up to the Court of Appeal.
It is clear the issue of Van Blerk’s challenge being res judicata was simply used to impede quick resolution. When finally Mr Van Blerk’s Appeal came before the Supreme Court, this was essentially its finding.
“”We should not lose sight of the fact that this matter started 33 years ago and that we do not expect litigants to have the patience of Job while waiting for their cases to move at a glacial pace in our courts. In any event, public policy demands that the judicial process must be sensitive to, among other things, speed and reduced litigation costs. It is regrettable that this litigation has taken so long. While the respondents cannot be blamed for defending their clients’ rights by adopting a Stalingrad defence, they should accept some reponsibility for contributing ti the uncertainty and delay in connection with this saga. They could have, for instance, realised that numerous authorities show that a judgment obtained by fraud or fraudulent misrepresentation can be set aside and that res judicata in such instances is not a defence and that the action was not time barred based on documentary evidence. Arguments on these fairly straight forward legal issues expended unnecessary time, costs and energy”, the Supreme Court said in its Judgment by Justices Albert Wood, Mumba Malila and Jane Kabuka delivered on 17th May 2021.
But perhaps the most villainous complication of this case was imported into it by the introduction of private companies to purchase portions of the compulsorily acquired land and some of them proceeded to sub-divide and sublet it, which actions were prohibited under the lease agreements they signed.
These companies are Bantu Capital Corporation Limited, and Kwikbuild Construction Limited. The National Pension Schemes Authority also later purchased part of the compulsorily acquired land on Farm 4300.
Intriguingly, Bantu Capital Corporation and NAPSA both purchased their portions when there was on-going litigation concerning the land, which the High Court and the Court of Appeal did not seem to have picked up despite Van Blerk’s lawyers raising it.
But the Supreme Court showed up these two entities and stated:
“State Counsel (Sakwiba) Sikota has, apart from stating the law on the subject, not attempted to show us how he was going to develop the argument that the 5th Respondent (Bantu Capital Corporation which he represented) was oblivious to the controversy and litigation in connection with the land which was very much in the public domain.”
Of NAPSA, the Supreme Court remarked:
“The 6th Respondent (NAPSA) cannot avail itself of this argument as it purchased the land, according to State Counsel (Elijah) Banda, in 2019 long after the writ of summons had been issued….”
This means that both Bantu Capital Corporation and NAPSA bought part of the land compulsorily acquired by the State for the LCC to construct a housing estate complex, while it was subject of court litigation.
Since then, these two entities have surprisingly continued to transact in the same land, creating sub divisions and carrying out constructions even while the case is still in court. In the case of NAPSA, disregard for the law in transactions over Baobab Land appears to have become a habit.
For example, in 2021 it had to take the Supreme Court to order the NAPSA to cease construction activities on Lusaka’s Baobab Land until the main case involving this land are finally determined by the courts.
In an Order signed on 21 July, 2021, just two months after Mr Van Blerk won his Appeal in the Supreme Court, Supreme Court Judge Albert Wood directed that NAPSA be restrained from carrying out any perimeter wall construction works or any building or fixture on this disputed land until final determination of the matter or until further order of the Court.
The Attorney General, who is 1st Respondent in the case, is both author of the original complication, having first compulsorily acquired the land for the LCC to build houses, and then being the agent for allocation of the same land to private companies so that they could profit from it. Later, in trying to defend its action of giving compulsorily acquired land to private companies, the Attorney General concocted the fiction that the private companies were being used as “conduits to bring about the original public purpose”. Clearly, in the original public purpose, the LCC, a public authority, would get profit from developments on the land, while private companies can only make profit for their individual or group owners.
In fact, at one point after being confronted with the problem it had created with the variation of the use of compulsorily acquired land, the Attorney General conceded a mistake had been made.
During this long litigation process, the Attorney General wrote a letter dated 17th January, 2012, to all parties involved in the now complicated saga to attempt an ex curia settlement of the matter.
“At that meeting, the Attorney General acknowledged the error of issuing the acquired portion to private entities, particularly 3rd (Legacy Holdings), 4th (Kwickbuild Construction (Z) Limited and 5th (Bantu Capital Corporation) respondents who equally defrauded the government by breaching their leases. It was agreed that the 1st Appellant (Mr Van Blerk) discontinue the matter to pave way for ex curia settlement in the light of the irregularities. This meeting was not attended by the 3rd, 4th and 5th respondents,” the Court of Appeal noted in its judgment of August 2019, whose summary of this was case was later praised by the Supreme Court in its Judgment of 17th May, 2021.
According to evidence presented, the ex curia settlement failed because it was frustrated by the 4th and 5th respondents, who refused to hand over their certificates of title for cancellation, claiming they were not party to the ex curia settlement that took place in the Attorney General’s office.
Attorney General Likando Kalaluka had even written on the matter:
“I make reference to the meeting held in my office on the above subject matter on 2nd March, 2017 at which you were represented by Mrs Sarah Chanda, Principal Legal Officer.”
“As agreed in the aforesaid meeting, kindly be advised that the Plaintiff has since discontinued the court matter herein. You may therefore proceed under section 11 of the Lands and Deeds Registry Act, to initiate the process of cancellation of the certificates of title issued to Bantu Capital Corporation Limited and Kwikbuild Construction Limited for failure to adhere to the conditions of the lease agreements.”
Meaning that after realising the mistake of allocating compulsorily acquired land to private companies, the Attorney General attempted to broker an ex curia settlement and also to cancel lease agreements because the two companies violated their terms. In both cases the Attorney General failed. Had the matter become too complicated for this office or the two entities were too powerful for the State?
Fortunately, when the Supreme Court allowed Mr Van Blerk’s appeal in the 17th May, 2021 Judgment, it cut through all the peripheral complications of this case to leave only main issue of determining fraud or fraudulent misrepresentation in the manner the Attorney General obtained the favourable judgment against Mr Van Blerk’s initial challenge in the High Court by submitting that part of Farm 4300 was compulsorily acquired for public purpose, but then went on to give the same land to private companies.
This determination was left to High Court Judge Sharon Newa. Judge Newa on 22 August, 2023, ruled that Mr Van Blerk had not proved that the judgments that went against him in the challenge against compulsory acquisition of part of his farm, in the High Court and the Supreme Court, were obtained by fraud, and dismissed his action.
A surprising judgment in the eyes of Mr Van Blerk’s side, whose opponents in this case are the private companies (Bantu Capital and Kwikbuild Construction), and NAPSA, the entities which were allocated or have bought the land compulsorily acquired for public use. The question is are these private companies therefore not the very evidence that the submission that part of Farm 4300 was compulsorily acquired for public use a case of fraudulent misrepresentation?
Judge Newa’s ruling also seems to have ignored totally the 17th May 2021 Supreme Court Judgment which said:
“We must at this point state that if property is compulsorily acquired for a public purpose and it later turns out that it was not after all for a public purpose, that compulsory acquisition can be set aside and the property restored to the original owner.”
The implication of this is that fraud or fraudulent misrepresentation can be situated at a point later than the initial instance of the compulsory acquisition itself. Therefore, proving fraud cannot be restricted to the presentations at the moment of compulsory acquisition. It can emerge later when the justification for the action turns out to be untrue. In this case justification was public use by Lusaka City Council, but the land was handed over to private companies for profit.
Hopefully, the Court of Appeal now hearing Mr Van Blerk’s appeal against Judge Newa’s ruling, will bring all the pseudo complications, legal or otherwise, to an end and determine what has always been the central issue:
Does it amount to fraud or fraudulent misrepresentation for the Attorney General to have submitted in the High Court that part of Farm 4300 was compulsorily acquired for the public purpose of LCC building housing estate complex, but then proceeding to give the same land to private companies for their own profit?
What has made Baobab Land case too complicated for Zambian courts?
By Mwebe Mbewa
Apart from taking three decades, and counting, what is it about the case involving Baobab Land in Lusaka that has made it too complicated for the Zambian judiciary to resolve after all these years?
This is the question that arises now that the case in which Lusaka farmer Jonathan Van Blerk is challenging the compulsory acquisition of part of Farm 4300 Lusaka by the State commences in the Court of Appeal, for the second time, after as many appearances in the Supreme Court.
In this case, Mr Van Blerk challenged the action because the Attorney General submitted in Court that the compulsory acquisition of part of Farm 4300 was done in the public interest, for the stated public purpose that Lusaka City Council would build a housing estate for civil servants and other residents, but later the State allocated the same land to private companies for their own profit.
There are factors which have made this case seem more complicated than it really is when looked at in the light of its most essential elements, starting with its history.
The actual compulsory acquisition of this land by the President took place in 1987. The public interest or public use of the acquired land was first articulated when owner of Farm 4300, Lusaka, Jonathan Van Blerk, challenged the action. The Attorney General told, first, the High Court, and later the Supreme Court, that the land was acquired for the Lusaka City Council to build a housing estate complex for civil servants.
However, as he was pursuing the case, Mr Van Blerk discovered that the same land was allocated to private entities, starting with Legacy Holdings which wanted to build a hotel and luxury golf course, a development without any resemblance to the public use submitted in court as justification for the compulsory acquisition.
This is why Mr Van Blerk concluded that the court submission by the Attorney General that part of his farm was compulsorily acquired to execute the well-articulated public interest project of housing estate complex was a misrepresentation.
After Legacy Holdings left without breaking ground, the land was divided between two other private entities Kwikbuild Construction(Z), Limited, which claimed it would use the land for purely agricultural purposes, and Bantu Capital Corporation intending to construct a commercial buildings and residential houses.
Again, uses to which these two private entities said they would apply the land bore no resemblance to the public use justification that the Attrorney General submitted to justify its compulsorily acquisition.
At this point, it can be said that the initial complication was introduced into this saga by the office of the Attorney General. When justifying the compulsory acquisition in the High Court, the Attorney General submitted that the land was for the public purpose of the LCC building a housing estate for civil servants and other residents. But instead, the State gave the same land to private companies to deal with it as they wished as long as they made profit.
But both these private entities violated their lease agreements and engaged in sub-dividing and selling of plots, which the agreements prohibited.
This seed of complication was nourished by two factors in the handling of the case by the courts themselves in two ways. Firstly, in spite of Van Blerk and his lawyers’ best efforts, the courts simply never addressed the question of the effect of this variation, from public purpose to private commercial purpose, on the substance of the public purpose justification the Attorney General submitted during the initial court challenge.
Secondly, the Attorney General and other respondents, now perceiving that the issue of public use justification, but private profit execution, had become problematic, switched their defence to the one major legal technicality of the process – that the High Court and the Supreme Court had already found that the compulsory acquisition was justified.
By this time, the two sides had the following positions: Mr Van Blerk believed the justification submitted by the Attorney General to the High Court, that part of his land was compulsorily acquired for the public purpose of LCC building housing estate, amounted to fraudulent misrepresentation because the Attorney General (State) later gave the same land to private companies for their own profit.
On the other hand, the respondents sought cover by repeatedly submitting that Mr Van Blerk’s challenge of the compulsory acquisition of part of this land had already been lost after the High Court ruled that it was justified.
But since this justification was based on the very submission that the land would be used by the LCC for the stated public purpose, now that it had been allocated to private companies to be applied used for their own profit, did the earlier public use justification still stand?
It is a source of consternation that successive lower courts which handled the various aspects of this case skirted addressing this central issue, but instead trailed red-herring legal technicalities, and preliminary issues, used to further complicate and stretch the case over two decades, which appeared to have been meant to tire Van Blerk into giving up on his challenge.
Of all the legal technicalities employed to frustrate Mr Van Blerk’s challenge, none was more effective than res judicata (loosely translated in layman’s language as ‘already adjudicated’), which almost all the respondents raised in their submissions and arguments, right up to the Court of Appeal.
It is clear the issue of Van Blerk’s challenge being res judicata was simply used to impede quick resolution. When finally Mr Van Blerk’s Appeal came before the Supreme Court, this was essentially its finding.
“”We should not lose sight of the fact that this matter started 33 years ago and that we do not expect litigants to have the patience of Job while waiting for their cases to move at a glacial pace in our courts. In any event, public policy demands that the judicial process must be sensitive to, among other things, speed and reduced litigation costs. It is regrettable that this litigation has taken so long. While the respondents cannot be blamed for defending their clients’ rights by adopting a Stalingrad defence, they should accept some reponsibility for contributing ti the uncertainty and delay in connection with this saga. They could have, for instance, realised that numerous authorities show that a judgment obtained by fraud or fraudulent misrepresentation can be set aside and that res judicata in such instances is not a defence and that the action was not time barred based on documentary evidence. Arguments on these fairly straight forward legal issues expended unnecessary time, costs and energy”, the Supreme Court said in its Judgment by Justices Albert Wood, Mumba Malila and Jane Kabuka delivered on 17th May 2021.
But perhaps the most villainous complication of this case was imported into it by the introduction of private companies to purchase portions of the compulsorily acquired land and some of them proceeded to sub-divide and sublet it, which actions were prohibited under the lease agreements they signed.
These companies are Bantu Capital Corporation Limited, and Kwikbuild Construction Limited. The National Pension Schemes Authority also later purchased part of the compulsorily acquired land on Farm 4300.
Intriguingly, Bantu Capital Corporation and NAPSA both purchased their portions when there was on-going litigation concerning the land, which the High Court and the Court of Appeal did not seem to have picked up despite Van Blerk’s lawyers raising it.
But the Supreme Court showed up these two entities and stated:
“State Counsel (Sakwiba) Sikota has, apart from stating the law on the subject, not attempted to show us how he was going to develop the argument that the 5th Respondent (Bantu Capital Corporation which he represented) was oblivious to the controversy and litigation in connection with the land which was very much in the public domain.”
Of NAPSA, the Supreme Court remarked:
“The 6th Respondent (NAPSA) cannot avail itself of this argument as it purchased the land, according to State Counsel (Elijah) Banda, in 2019 long after the writ of summons had been issued….”
This means that both Bantu Capital Corporation and NAPSA bought part of the land compulsorily acquired by the State for the LCC to construct a housing estate complex, while it was subject of court litigation.
Since then, these two entities have surprisingly continued to transact in the same land, creating sub divisions and carrying out constructions even while the case is still in court. In the case of NAPSA, disregard for the law in transactions over Baobab Land appears to have become a habit.
For example, in 2021 it had to take the Supreme Court to order the NAPSA to cease construction activities on Lusaka’s Baobab Land until the main case involving this land are finally determined by the courts.
In an Order signed on 21 July, 2021, just two months after Mr Van Blerk won his Appeal in the Supreme Court, Supreme Court Judge Albert Wood directed that NAPSA be restrained from carrying out any perimeter wall construction works or any building or fixture on this disputed land until final determination of the matter or until further order of the Court.
The Attorney General, who is 1st Respondent in the case, is both author of the original complication, having first compulsorily acquired the land for the LCC to build houses, and then being the agent for allocation of the same land to private companies so that they could profit from it. Later, in trying to defend its action of giving compulsorily acquired land to private companies, the Attorney General concocted the fiction that the private companies were being used as “conduits to bring about the original public purpose”. Clearly, in the original public purpose, the LCC, a public authority, would get profit from developments on the land, while private companies can only make profit for their individual or group owners.
In fact, at one point after being confronted with the problem it had created with the variation of the use of compulsorily acquired land, the Attorney General conceded a mistake had been made.
During this long litigation process, the Attorney General wrote a letter dated 17th January, 2012, to all parties involved in the now complicated saga to attempt an ex curia settlement of the matter.
“At that meeting, the Attorney General acknowledged the error of issuing the acquired portion to private entities, particularly 3rd (Legacy Holdings), 4th (Kwickbuild Construction (Z) Limited and 5th (Bantu Capital Corporation) respondents who equally defrauded the government by breaching their leases. It was agreed that the 1st Appellant (Mr Van Blerk) discontinue the matter to pave way for ex curia settlement in the light of the irregularities. This meeting was not attended by the 3rd, 4th and 5th respondents,” the Court of Appeal noted in its judgment of August 2019, whose summary of this was case was later praised by the Supreme Court in its Judgment of 17th May, 2021.
According to evidence presented, the ex curia settlement failed because it was frustrated by the 4th and 5th respondents, who refused to hand over their certificates of title for cancellation, claiming they were not party to the ex curia settlement that took place in the Attorney General’s office.
Attorney General Likando Kalaluka had even written on the matter:
“I make reference to the meeting held in my office on the above subject matter on 2nd March, 2017 at which you were represented by Mrs Sarah Chanda, Principal Legal Officer.”
“As agreed in the aforesaid meeting, kindly be advised that the Plaintiff has since discontinued the court matter herein. You may therefore proceed under section 11 of the Lands and Deeds Registry Act, to initiate the process of cancellation of the certificates of title issued to Bantu Capital Corporation Limited and Kwikbuild Construction Limited for failure to adhere to the conditions of the lease agreements.”
Meaning that after realising the mistake of allocating compulsorily acquired land to private companies, the Attorney General attempted to broker an ex curia settlement and also to cancel lease agreements because the two companies violated their terms. In both cases the Attorney General failed. Had the matter become too complicated for this office or the two entities were too powerful for the State?
Fortunately, when the Supreme Court allowed Mr Van Blerk’s appeal in the 17th May, 2021 Judgment, it cut through all the peripheral complications of this case to leave only main issue of determining fraud or fraudulent misrepresentation in the manner the Attorney General obtained the favourable judgment against Mr Van Blerk’s initial challenge in the High Court by submitting that part of Farm 4300 was compulsorily acquired for public purpose, but then went on to give the same land to private companies.
This determination was left to High Court Judge Sharon Newa. Judge Newa on 22 August, 2023, ruled that Mr Van Blerk had not proved that the judgments that went against him in the challenge against compulsory acquisition of part of his farm, in the High Court and the Supreme Court, were obtained by fraud, and dismissed his action.
A surprising judgment in the eyes of Mr Van Blerk’s side, whose opponents in this case are the private companies (Bantu Capital and Kwikbuild Construction), and NAPSA, the entities which were allocated or have bought the land compulsorily acquired for public use. The question is are these private companies therefore not the very evidence that the submission that part of Farm 4300 was compulsorily acquired for public use a case of fraudulent misrepresentation?
Judge Newa’s ruling also seems to have ignored totally the 17th May 2021 Supreme Court Judgment which said:
“We must at this point state that if property is compulsorily acquired for a public purpose and it later turns out that it was not after all for a public purpose, that compulsory acquisition can be set aside and the property restored to the original owner.”
The implication of this is that fraud or fraudulent misrepresentation can be situated at a point later than the initial instance of the compulsory acquisition itself. Therefore, proving fraud cannot be restricted to the presentations at the moment of compulsory acquisition. It can emerge later when the justification for the action turns out to be untrue. In this case justification was public use by Lusaka City Council, but the land was handed over to private companies for profit.
Hopefully, the Court of Appeal now hearing Mr Van Blerk’s appeal against Judge Newa’s ruling, will bring all the pseudo complications, legal or otherwise, to an end and determine what has always been the central issue:
Does it amount to fraud or fraudulent misrepresentation for the Attorney General to have submitted in the High Court that part of Farm 4300 was compulsorily acquired for the public purpose of LCC building housing estate complex, but then proceeding to give the same land to private companies for their own profit?
